MARGARET B. SEYMOUR, Senior District Judge.
Plaintiff Courtney L. Brockington ("Plaintiff"), proceeding pro se, brought the underlying action against her former employer, Defendant South Carolina Emergency Management Division ("EMD"), and her former supervisor, Defendant Director, Kim Stevenson
On July 17, 2015, Plaintiff, who is black, was hired to work as a Personnel Liaison with EMD. ECF No. 21 at 2. As a Personnel Liaison, Plaintiff was responsible for all employees' files and received training on various workplace policies and procedures. Id.
On February 23, 2016, Plaintiff was indicted by a federal grand jury on four counts of fraud.
On December 28, 2016, Plaintiff filed the present lawsuit against Defendants for wrongful termination and race discrimination.
The Magistrate Judge reviewed Plaintiff's complaint and issued a Report and Recommendation on February 23, 2017, recommending that Defendant Stenson be summarily dismissed without prejudice and without issuance and service of process. ECF No. 18. The Magistrate Judge recommended that Stenson be dismissed as a Defendant on the grounds that claims brought under Title VII do not provide for individual liability. ECF No. 18 at 3 (citing Lissau v. S. Food Serv., Inc., 159 F.3d 177, 180 (4th Cir. 1998) (holding that supervisors are not liable in their individual capacities for Title VII violations). Plaintiff filed objections to the Report on March 10, 2017, ECF No. 21, to which EMD filed a reply on March 20, 2017. ECF No. 23.
On July 31, 2017, EMD filed a motion to dismiss for failure to state a claim. ECF No. 57. EMD contends that Plaintiff's complaint should be dismissed because: (1) Plaintiff has not alleged that she is a member of a protected class; (2) Plaintiff has not alleged that she was qualified for the job or that her work was satisfactory; and (3) Plaintiff has not alleged facts that would show she was treated differently from white employees who were not members of the protected class. ECF No. 57-1. Further, EMD argues that "none of [Plaintiff's] allegations are analogous to her claims, as none involved an employee being accused of a crime." Id.
On August 1, 2017, pursuant to Roseboro v. Garrison, 528 F.2d 309 (4th Cir. 1975), Plaintiff was advised of the dismissal procedures and the possible consequences if she failed to respond properly. ECF No. 58. On September 1, 2017, Plaintiff filed a response in opposition to EMD's motion to dismiss. ECF No. 66. Plaintiff argues she was treated differently from white employees as they committed the following acts: (1) left work early every day; (2) took two hour lunches; (3) drove the company car to the beach while intoxicated and were stopped by police without any subsequent reprimands by EMD; and (4) unlawfully used leave from the State of South Carolina. ECF No. 66 at 5. EMD filed a reply on September 8, 2017. ECF No. 69.
Additionally, EMD filed a motion to compel, seeking supplemental responses to EMD's First Interrogatories and to First Request for Production.
On September 25, 2017, the Magistrate Judge granted EMD's motion to compel and ordered Plaintiff to fully respond to EMD's discovery requests by October 6, 2017. ECF No. 76. The Magistrate Judge ordered EMD to file an affidavit of fees and costs associated with its motion to compel. Id. On October 6, 2017, EMD filed an affidavit of attorney's fees, which itemized 7.25 hours spent working on the motion to compel for a total fee of $797.50.
On November 15, 2017, the Magistrate Judge issued an Order awarding EMD attorney's fees in the amount of $467.50. ECF No. 99. The Magistrate Judge reduced EMD attorney's fees based on the finding that two time expenditures appear to have been incurred prior to the filing of the motion to compel. ECF No. 99. The Magistrate Judge considered Plaintiff's objections, but concluded that EMD's attorney's fees are reasonable based on the factors adopted by the Fourth Circuit in Barber v. Kimbrell's, Inc., 577 F.2d 216 (4th Cir. 1978), for calculations of attorney's fees.
On the same day, the Magistrate Judge filed a second Report and Recommendation, recommending that EMD's motion to dismiss for failure to state a claim be granted and that Plaintiff's remaining motions be terminated as moot.
The Magistrate Judge makes only a recommendation to this court. The recommendation has no presumptive weight and the responsibility for making a final determination remains with the court. Mathews v. Weber, 423 U.S. 261, 270 (1976). The court reviews de novo only those portions of a Magistrate Judge's Report and Recommendation to which specific objections are filed, and reviews those portions which are not objected to — including those portions to which only "general and conclusory" objections have been made — for clear error. Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005); Camby v. Davis, 718 F.2d 198, 200 (4th Cir. 1983); Opriano v. Johnson, 687 F.2d 44, 77 (4th Cir. 1982). The court may accept, reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the matter with instructions. 28 U.S.C. § 636(b)(1).
A motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state a claim should not be granted unless it appears certain that the plaintiff can prove no set of facts that would support her claim and would entitle her to relief. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When considering a motion to dismiss, the court should accept as true all well-pleaded allegations and should view the complaint in a light most favorable to the plaintiff. Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir. 1999); Mylan Labs, Inc., 7 F.3d at 1134. "To survive a motion to dismiss, a complaint must state `enough facts to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The court must treat factual allegations of the nonmoving party as true. Estate Constr. Co. v. Miller & Smith Holding Co., 14 F.3d 213, 217-18 (4th Cir. 1994).
Plaintiff brought this action pro se, which requires the court to liberally construe her pleadings. Estelle v. Gamble, 429 U.S. 97, 106 (1976); Haines v. Kerner, 404 U.S. 519, 520, (1972); Loe v. Armistead, 582 F.2d 1291, 1295 (4th Cir. 1978). Pro se pleadings are held to a less stringent standard than those drafted by attorneys. Haines, 404 U.S. at 520. Even under this less stringent standard, however, the pro se complaint is still subject to dismissal. Id. at 520-21.
Title VII makes it an unlawful employment practice for an employer to "discharge any individual, or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race." 42 U.S.C. § 2000e-2(a)(1). A plaintiff may demonstrate a violation of Title VII through direct or circumstantial evidence. Coleman v. Md. Ct. App., 626 F.3d 187, 190 (4th Cir. 2010). When direct evidence is lacking, a plaintiff may demonstrate a violation of Title VII through circumstantial evidence and proceed under the McDonnell Douglas burden-shifting framework. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Pursuant to this framework, once the Plaintiff establishes a prima facie case of a violation of Title VII, the burden shifts to the defendant to produce evidence of a legitimate, nondiscriminatory reason for its adverse employment action. Merritt v. Old Dominion Freight, 601 F.3d 289, 294 (4th Cir. 2010). Once the defendant meets this burden, the burden shifts back to the Plaintiff to demonstrate by preponderance of the evidence that the proffered reason was "not its true reason[], but [was] a pretext." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
For race discrimination claims, Plaintiff must allege the following elements of a prima facie case pursuant to Title VII: (1) she is a member of a protected class; (2) her job performance was satisfactory; (3) she suffered adverse employment action; and (4) she was treated differently from similarly situated employees outside the protected class. Coleman, 626 F.3d at 190 (noting that "absent such support, the complaint's allegations of race discrimination do not rise above speculation").
Pursuant to Rule 37(a), "if a motion to compel is granted, or if the requested discovery is provided after the motion is filed, "the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion . . . to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees." Fed. R. Civ. P. 37(a)(5)(A). However, the court must not order this payment if the movant did not make a good faith effort to obtain the discovery prior to the filing its motion, if the opposing party's failure to produce the requested discovery was substantially justified, or if the circumstances would make such an award of expenses unjust. Fed. R. Civ. P. 37(a)(5)(A)(i)-(iii). The Rule further provides that a party's failure to act "is not excused on the ground that the discovery sought was objectionable, unless the party failing to act has a pending motion for protective order under Rule 26(c)." Fed. R. Civ. P. 37(d)(2).
The Magistrate Judge recommended that EMD's motion to dismiss for failure to state a claim be granted. ECF No. 100. The Magistrate Judge found that Plaintiff fails to allege a prima facie claim of racial discrimination pursuant to Title VII. ECF No. 100 at 6. When considering the fourth prong, the Magistrate Judge noted that Plaintiff "fails to allege a similarly situated person outside of her protected class was treated in a more favorable manner." Id. at 5 (citing Haywood v. Locke, 387 F. App'x 355, 359 (4th Cir. 2010) (holding that "for a person to be similarly situated, a plaintiff is required to show that the plaintiff is similar in all relevant respects to the comparator")). Specifically, the Magistrate Judge noted that Plaintiff fails to indicate that "any of the white individuals who were allegedly treated better were arrested for criminal charges of fraud or similarly serious conduct." ECF No. 100 at 6. While the Magistrate Judge considered Plaintiff's allegations of EMD employees stealing time from the State of South Carolina and going to the beach with subsequent police involvement, the Magistrate Judge concluded that none of these allegations indicate "any of these other employees were actually charged with a crime by authorities." ECF No. 100 at 6. Therefore, the Magistrate Judge concluded that Plaintiff has failed to establish a prima case for race discrimination and recommended granting Defendant's motion to dismiss for failure to state a claim. Id. at 7.
Plaintiff contends that the Magistrate Judge erred in finding that there is insufficient evidence to establish a prima facie case as to the fourth prong of Plaintiff's race discrimination case. ECF No. 66. Plaintiff asserts that she presented her case and that "there are no policies and procedures for terminating an employee who is charged with any type of crime." ECF No. 103 at 1. Plaintiff further argued that she was a Personnel Liaison and was in a position to know of other employees' misconduct. Id. at 2. As a result, Plaintiff asserts that she knows EMD's employees committed crimes by taking paid time off that never accrued and improperly used sick time, for which EMD did not impose any sanctions or terminations. ECF No. 103 at 2. Plaintiff further asserts that the court should have requested documentation from EMD to fully review all of Plaintiff's claims and to provide Defendants with time to dispute their employees' violations of South Carolina laws. ECF No. 103 at 3.
With respect to the fourth prong at issue, Plaintiff provides no evidence that EMD treated her differently from similarly situated employees outside her protected class. See Haywood v. Locke, 387 F. App'x 355, 359 (4th Cir. 2010) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 258 (1981) (noting that "[i]t is the plaintiff's task to demonstrate that similarly situated employees were not treated equally"); Haywood, 387 F. App'x at 359 ("[S]uch a showing would include evidence that the employees "dealt with the same supervisor, [were] subject to the same standards and . . . engaged in the same conduct without differentiating or mitigating circumstances that would distinguish their conduct or the employer's treatment of them for it."). Of particular significance is the fact that Plaintiff points to no occasion on which EMD failed to terminate any employee charged with a crime. To the contrary, Plaintiff's evidence describes several instances of employee misconduct pertaining to leave and sick time; none, however, regarding criminal charges by law enforcement authorities. Thus, Plaintiff provides no evidence that she received more severe discipline than any similarly situated employee charged with a crime, nor any comparators on which to make an assessment for race discrimination. Therefore, Plaintiff has failed to establish a prima facie case for race discrimination.
After reviewing the record, the court finds that Plaintiff's objections do not direct the court to a specific error in in the Magistrate Judge's Report and Recommendation. Orpiano, 687 F.2d at 47-48. Nevertheless, the court has conducted a de novo review of the issues in this case and concludes that the Magistrate Judge has properly applied the applicable law. After accepting the well-pleaded allegations in Plaintiff's complaint as true and drawing all reasonably factual inferences from those facts in Plaintiff's favor, the court agrees with the Magistrate Judge's recommendation that EMD's motion to dismiss be granted. The court finds Plaintiff's factual allegations do not sufficiently state a prima facie claim against Defendants for race discrimination.
The Magistrate Judge found that EMD sent Plaintiff a letter by regular and certified mail on May 22, 2017, and a letter by regular mail on August 1, 2017, requesting supplemental responses. ECF No. 76 at 5. Plaintiff objected to the motion because EMD did not consult with her before filing its motion. ECF No. 65 at 1. However, the Magistrate Judge acknowledged that Plaintiff is pro se in this matter and as such EMD is not required to consult with Plaintiff prior to the filing of the motion. Local Civil Rule 7.02 (D.S.C.). More specifically, the Magistrate Judge found that Plaintiff generally objected to "producing and disclosing such communication that may damage [her] case" and did not provide an explanation as to why the responses were delayed. ECF No. 76 at 4. Thus, the Magistrate Judge granted EMD's motion to compel along with attorney's fees.
Plaintiff argues that she never received the certified mail letter from EMD and therefore the Magistrate Judge erred in granting EMD's motion to compel. ECF No. 104 at 1. Plaintiff further asserts that she is pro se and is unable to pay legal services for herself or anyone else. ECF No. 104 at 2. Lastly, Plaintiff requests that any attorney's fees must be paid by EMD to their own legal counsel. ECF No. 104 at 2.
The court notes that Plaintiff does not dispute receipt of the letters sent by regular mail requesting the responses. Most importantly, Plaintiff has not provided the court with an explanation as to why responses to EMD's discovery requests were delayed aside from the possibility of damaging Plaintiff's case. Having considered the record, the court agrees with the Magistrate Judge's award of attorney's fees to EMD. The court finds no clear error in the Report and Recommendation as the Magistrate Judge accurately recited the facts and properly applied the applicable law. Plaintiff is ordered to pay EMD's attorney's fees for its motion to compel.
The court adopts the Magistrate Judge's Report and Recommendations and incorporates them herein by reference. ECF No. 18, ECF No. 100. Defendant EMD's motion to dismiss for failure to state a claim is GRANTED. ECF No. 57. The court has considered Plaintiff's objections to EMD's award of attorney's fees and finds no clear error in the Magistrate Judge's decision. ECF No. 103. Plaintiff is hereby ordered to pay EMD attorney's fees incurred in filing the motion to compel. Plaintiff's remaining motions are terminated as moot (ECF No. 67, 74, & 75).
IT IS SO ORDERED.
